SCOTUS grants cert in beachfront renourishment case
On June 15, 2009, the United States Supreme Court granted certiorari in the case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Docket No. 08-1151. This is the Court’s first sojourn into the takings issue since June 2005, when the court issued three opinions in the Kelo, Lingle and San Remo Hotel cases. See post in the ABA Journal online, "Surprise! Supreme Court grants cert in beach taking case," and related links.
This is a regulatory takings case where the Florida Supreme Court, in a 5-2 decision, rejected the beachfront property owners’ challenge to a state law authorizing beach replenishment through creation of sand dunes and asserting public ownership to the created land area. The Florida Supreme Court concluded that the law did not constitute a compensable taking. See Robert H. Thomas' post at Inverse Condemnation blog:
In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:
The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
The case has interesting implications in many states, and specifically New Jersey, where the Army Corps of Engineers, operating through local municipalities, is seeking to accomplish beach replenishment along the entire length of Long Beach Island. See our January 29 post, "Eminent domain in Harvey Cedars."
It has also been reported that another case emanating from southern California may be in line for the Supreme Court to grant certification. That case, Cassidas Municipal Water District v. United States, is reported at 543 Fed. 3rd 1276 (2008). There the United States Court of Appeals held that a federal requirement imposed on a local water district constituted a compensable taking of private property under the Fifth Amendment. The government required, pursuant to the Endangered Species Act (“ESA”), that the local water district add a fish ladder to its water storage and transfer facilities, diverting sufficient water to allow passage for fish species protected under the ESA. The court found this regulation amounted to a physical taking of the water district’s property interest in the water so diverted. Various environmental groups have petitioned the Obama administration’s solicitor general to seek certification of the court’s decision. The time within which to petition for cert has been extended by Chief Justice Roberts to July 15. If cert is granted in this case, there will be two significant takings cases before the court in the 2009-2010 term.
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al. Docket: 08-1151
• Opinion below (Supreme Court of Florida)
• Petition for certiorari
• Brief in opposition for respondent Florida Department of Environmental Protection
• Brief in opposition for respondents Walton County and City of Destin
• Petitioner’s reply
• Brief amicus curiae of Pacific Legal Foundation (in support of petitioner)